TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

These terms and conditions apply only to the flex services described on the flex mobile application and www.jobtodayflex.com, and not to any other services provided by Job Today which are governed by separate terms and conditions.

Dated: 20th August 2019

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING JOBTODAY

These terms and conditions, together with any other policies, agreements, or documents referred to in it, (the “Agreement“), constitute a binding legal agreement between JobToday UK Limited, with its registered address at c/o Withers LLP, 20 Old Bailey, London, EC4M 7AN (“JobToday“, “we“, “us“), and you (“Client“, “you“), together (the “parties“). This Agreement sets out the legal terms and conditions on which we provide the Services to you, and will apply to any Contract between the parties for the supply of Services.

Before using the Services you must read, agree with and accept all of the terms and conditions contained in this Agreement. You agree that any use by you of the Services shall constitute your acceptance of this Agreement. We recommend that you retain a copy of this agreement (including all policies) for your records.

1. Interpretation and definitions

1.1. The following definitions and rules of interpretation apply in this Agreement and to each Contract entered into between the parties.

Contract: in respect of each Order accepted by JobToday, the Order, the relevant provisions of this Agreement and any other documents or terms incorporated by reference therein, or otherwise agreed between the parties governing the Client’s use of the Services.

Data Protection Laws: the UK Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any subsequent legislation in force from time to time in the UK relating to the processing of personal data or protection of privacy.

Fees: the fees paid by Client to JobToday, as consideration for the provision of Services, as notified to and accepted by Client.

Order: an order for the provision of Services submitted by Client, either by email, by using JobToday’s Website or mobile application, or as otherwise permitted by JobToday.

Services: the hiring and staffing services to be provided by JobToday, as further detailed in a relevant Contract.

Staff: any employees or contractors of JobToday who will be made available to Client under a Contract.

Start Date: the date referred to in the relevant Contract on which Client requires Staff to be made available to it by JobToday.

Stripe: Stripe Payments Europe, Ltd., a private company organized under the laws of Ireland with offices at The One Building, 1 Grand Canal Street Lower, Dublin 2, Ireland.

Stripe Services Agreement: Stripe Connect Account Agreement (found at https://stripe.com/gb/connect-account/legal) and the Stripe Services Agreement (found at https://stripe.com/gb/ssa);

Website: www.jobtodayflex.com

Flex mobile application: JOBTODAY Flex: Business

2. Use of the services

2.1. This Agreement governs the overall relationship between JobToday and Client in relation to Client’s use of the Services, and sets out the procedure for Client to request Services from JobToday from time to time.

2.2. In entering into this Agreement, you confirm that you have authority to bind any business on whose behalf you use the Services.

3. Placing order and formation of contracts

3.1. Client shall order Services by submitting an Order. JobToday shall notify Client of the Fees and any additional terms relevant to the Order.

3.2. Once the Client has confirmed the Fees and acceptance of any additional terms relevant to the Order, the Order shall be binding and form a Contract between the Parties.

3.3. For the avoidance of doubt, JobToday has no obligation to accept any Orders submitted by the Client.

3.4. Each Contract for Services forms a separate contract between the parties, and any amendments to this Agreement agreed between Client and JobToday shall be deemed to apply to all future Contract entered into after the date of such amendment. To the extent that there is a conflict between the Agreement and a Contract, the Contract shall prevail.

4. JobToday’s Obligations

4.1 JobToday shall:

  1. comply with Client’s reasonable instructions and all applicable laws and regulations in providing the Services to Client;
  2. remain liable to Client for the acts or omissions of any Staff made available to Client whilst such Staff are in attendance at Client’s premises as part of the Services.

5. Client’s Obligations and warranties

5.1. Client shall:

  1. co-operate with JobToday in any manner reasonably required by JobToday, including provision of accurate information and data, making available suitably qualified employees and contractors of Client and providing access to Client’s premises;
  2. ensure that it complies with all legal requirements in respect of the Staff, including treating all Staff in compliance with all relevant legislation and good industry practice. Client acknowledges and agrees that this obligation shall include, but shall not be limited to, providing (at Client’s cost) transport for Staff working after midnight and ensuring that Staff are given adequate breaks;
  3. provide all relevant equipment, systems, cabling or facilities required for the provision of the Services, and ensure it is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements;
  4. obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services insofar as such licences, consents and legislation relate to Client’s business, premises, staff and equipment, in all cases before the Start Date;
  5. maintain all insurance policies necessary in relation to the Services;
  6. comply, as soon as reasonably practicable, with all of JobToday’s reasonable requests for information or assistance;
  7. ensure that it has in place and maintains suitable policies and procedures including (without limitation), health and safety policies and all other relevant policies, and procedures relevant to Client’s use of the Services; and
  8. comply with any additional responsibilities set out in the relevant Contract.

5.2. Client shall not, without the prior written consent of JobToday, at any time, solicit or entice away from JobToday or employ or attempt to employ any person who is, or has been, engaged as an employee or contractor of JobToday in the provision of the Services, including any Staff.

5.3 In the event of any breach of clause 5.2 by Client:

  1. Client shall pay to Job Today an introduction fee of £1,000 per candidate for all chef roles;
  2. client shall pay to Job Today an introduction fee of £500 per candidate for all front of house roles including Kitchen Porter;
  3. the Fees shall automatically and immediately increase by an extra £500 penalty fee from the date on which Client breaches Clause 5.2.

5.4. Client represents and warrants to JobToday that:

  1. it has full authority to enter into this Agreement and any Contract entered into pursuant to this Agreement;
  2. it will not be violating any laws or regulations by entering into this Agreement or using the Services;
  3. it is not acting as agent for an undisclosed principal or third-party beneficiary;
  4. all information Client provides to JobToday is true, correct, and complete, and Client undertakes to promptly notify JobToday of any changes to such information;
  5. it will not use the Services for any unlawful activity. JobToday reserves the right to investigate any suspicious activity and any complaints or reported violations received by JobToday from Staff or any third party. When investigating any such activity, JobToday reserves the right to report suspected unlawful activity to the competent authority and provide them with any relevant information, including confidential information or personal data to the extent required by law.

6. Intellectual property

6.1. Unless stated otherwise in this Agreement or a Contract, nothing in this Agreement shall be deemed to transfer ownership of, or imply any licence to, any intellectual property rights owned or licensed by JobToday to Client, or vice versa.

6.2. The Client hereby grants to JobToday a non-exclusive, royalty free, non-transferable, non-sublicensable, worldwide licence to use Client’s intellectual property rights to the extent necessary to provide the Services.

6.3. JobToday shall be permitted to refer to Client and use its logo in JobToday’s promotional materials, and to identify Client as a customer of JobToday.

7. Charges and Payment

7.1. In consideration for the performance of the Services, JobToday shall invoice Client for the Fees, and Client shall pay the Fees, in accordance with this clause unless agreed otherwise in a Contract.

7.2. Reasonable out-of-pocket expenses, agreed by the parties in writing in advance, may also be charged by JobToday on production of reasonable evidence of expenditure to Client.

7.3. Payment processing services for Clients are provided by Stripe and are subject to the Stripe Services Agreement. By agreeing to the terms of this Agreement, Client agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Client's use of the Services and for the purposes of enabling payment processing services through Stripe, Client agrees to provide JobToday with accurate and complete information about it and its business (insofar as the same is required to render the Services), and Client authorises JobToday to share with Stripe that information and transaction information related to Client's use of the payment processing services provided by Stripe. JobToday shall not be liable for any damage or loss attributable to Stripe.

7.4. Invoices shall be issued on a regular basis by JobToday under or in connection with a Contract, and shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced and any additional costs permitted under clause 7.2.

7.5. Client shall be required to make payment of each such invoice in pounds sterling on or before the due date of the invoice and by agreeing to the terms of this Agreement, Client authorizes JobToday to charge the credit card or debit the debit card account the details of which Client has provided to JobToday via the Stripe platform to settle, immediately on issuance, any invoices issued by JobToday with respect to Services provided without any further consent (and such invoices will, consequently, show a zero balance due). Client agrees that the payment card specified by it for payments to JobToday is, and will continue to be, an account that it owns, and that it will maintain sufficient availability under its credit card limit, or sufficient funds in the account linked to its debit card, as applicable, to pay all amounts as and when due to JobToday.

7.6. All payments made under a Contract are exclusive of tax. Client shall, in addition and where applicable, pay to JobToday the amount of any tax, duty or assessment, including any which JobToday is obliged to pay and/or collect from Client in respect of any supply under a Contract.

7.7. If Client fails to make any payment due to JobToday under a Contract by the due date for payment, then, without limiting JobToday’s remedies under clause 11:

  1. JobToday may suspend its performance of the Services and shall not be required to recommence performance of the Services until such invoice(s) are paid. JobToday shall not be liable for non-performance of such obligations while the invoice(s) concerned remain unpaid, or liable for any delay caused by a suspension under this clause 8.6 (a); and
  2. Client shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Client shall pay the interest together with the overdue amount.

8. Cancellation

8.1. In the event that Client cancels any request for Services pursuant to this Agreement, and such cancellation is sent to JobToday with at least 24 hours’ notice before the Start Date, no Fees shall be due.

8.2. Subject to clause 8.1, if Client cancels any request for Services within 15 minutes after making an order, no Fees shall be due.

8.3. Subject to clause 8.1, if Client cancels any request for Services with less than 24 hours’ notice before the Start Date, Client shall be liable to pay to Job Today a cancellation fee of 100% of the Fees which would have been owed to Job Today for the 24 hour period commencing from the Start Date, under the relevant Contract.

9. Confidentiality and data protection

9.1. Each party undertakes that it shall not, and JobToday shall procure that Staff shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 9.2

9.2. Each party may disclose the other party’s confidential information:

  1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement or a Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9 and shall remain responsible for ensuring such compliance (and liable in the event of breach); and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement or a Contract.

9.4. The provisions of this clause shall continue to apply after the expiry or earlier termination of this Agreement.

9.5. Client acknowledges that in order to facilitate the provision of the Services, Client will receive personal data relating to the Staff (“Staff Personal Data”).

9.6. Client acknowledges and agrees that, in relation to Staff Personal Data, each party shall be an independent data controller (as defined in the Data Protection Laws), and each party shall comply with all of its obligations under the Data Protection Laws.

9.7. Each party warrants to the other that it has all necessary rights, permissions and consents in place to process Staff Personal Data, and that any processing (as defined in the Data Protection Laws) of Staff Personal Data shall be carried out on lawful grounds.

9.8. To the extent JobToday processes any personal data provided by Client, it shall do so strictly in accordance with the Data Protection Laws, its privacy policy at http://www.jobtoday.com/en/privacy and its internal privacy notice to employees and consultants (a copy of which can be made available to Client on request).

10. Limitation of Liability

10.1. Nothing in this Agreement shall limit or exclude JobToday’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be excluded or limited by law.

10.2. Subject to clause 10.1, JobToday shall not be liable to Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for, loss of profits, loss of business, loss of anticipated savings, loss or damage to goodwill, loss or corruption of software, data, or information, or any indirect or consequential loss.

10.3. Subject to clause 10.1, JobToday’s total liability under a Contract, whether in contract, tort or otherwise shall be limited to the Fees paid or payable by Client under the relevant Contract in the 12 months preceding the date on which such claim arises.

10.4. Except as expressly stated in this Agreement, JobToday does not make any representation, or give any warranties or undertakings in relation to the Services. Any representation, condition or warranty which might be implied or incorporated into this Agreement by statute, common law or otherwise (including, without limitation, warranties or merchantability and fitness for a particular purpose) is excluded to the fullest extent permitted by law.

11. Term and Termination

11.1. This Agreement shall commence on the date it is signed by both parties and shall continue until terminated by either party in accordance with the terms of this Agreement.

11.2. The term of each Contract shall be set out in each Contract.

11.3. Either party may terminate this Agreement by giving at least thirty (30) days’ prior written notice to the other party at any time and for any reason.

11.4. Either party may terminate this Agreement and/or (where the cause for termination relates to a Contract) a Contract, with immediate effect by giving written notice to the other if:

  1. the other party commits a breach of a material term of this Agreement or a Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 Days after being notified in writing to do so;
  2. the other party repeatedly breaches any of the terms of this Agreement or a Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement or a Contract;
  3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
  4. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

12. Consequences of termination

12.1. Where Client terminates this Agreement or a Contract in accordance with clause 11.3, fees for early termination may apply, as more particularly described in a relevant Contract.

12.2. In the event this Agreement or a Contract terminates (howsoever arising) or expires:

  1. any provision of this Agreement or a Contract which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement or a Contract shall remain in full force and effect; and
  2. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement or a Contract which existed at or before the date of termination or expiry, shall not be affected.

12.3. On termination of this Agreement, howsoever arising, each Contract then in force at the date of such termination shall nevertheless continue in full force and effect for the remainder of the term of such Contract, unless earlier terminated in accordance with the terms of such Contract or this Agreement.

12.4. On expiry or termination of a Contract (howsoever arising):

  1. each party shall as soon as reasonably practicable return, destroy or permanently erase (as directed in writing by the other party) any documents, materials or other information or data provided to it by the other party containing, reflecting, incorporating or based on confidential information belonging to the other party, provided that Client may retain copies of any of JobToday’s confidential information to the extent necessary to allow it to make full use of the Services (provided the obligations of confidentiality continue);
  2. Client shall immediately pay any outstanding unpaid invoices and interest due to JobToday, and JobToday shall submit invoices for any Services that it has provided, but for which no invoice has been submitted, and Client shall pay these invoices immediately on receipt.

13. Force Majeure

Neither party shall be in breach of this Agreement or a Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement or a Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this Agreement or the affected Contract (as appropriate) by giving thirty (30) days’ written notice to the affected party.

14. General

14.1. Further assurance: Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement and each Contract.

14.2. Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or a Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.3. Entire agreement: This Agreement and each Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement and a Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement or a Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement or a Contract.

14.4. Variation: No variation of this Agreement or a Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14.5. Severance:

  1. If any provision or part-provision of this Agreement or a Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement or a Contract.
  2. If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement or a Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.6. Third-party rights: No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its or a Contract’s terms.

14.7. No partnership or agency: Nothing in this Agreement or a Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

14.8. Notice: Any notice given to a party under or in connection with this Agreement or a Contract shall be in writing and shall be delivered by first class post or by hand to its registered office, or by email to an email address identified as appropriate for receipt of such notices.

14.9. Assignment: Client acknowledges that JobToday shall be entitled to subcontract any of its obligations under this Agreement. Client may not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this Agreement or a Contract without the prior written consent JobToday (such consent not to be unreasonably withheld or delayed).

14.10. Governing law and jurisdiction: This Agreement and each Contract and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to settle the same.

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